DMCA Rulemaking Hearings Underway

On Thursday, the Copyright Office held the first in a series of hearings on its triennial DMCA Anti-Circumvention Rulemaking in Palo Alto, CA. Every three years, the Copyright Office solicits proposals to exempt specified classes of works from the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. Seventy-four such proposals were submitted in the current proceeding, two of which were discussed at yesterday's hearing.

Jennifer Granick of the Stanford Cyberlaw Clinic made the case for a proposed exemption that would permit circumvention of access control measures that prevent the unlocking of mobile phones. Many mobile phone carriers include protection measures on their handsets that prevent their customers from accessing firmware on their phones that would enable those customers to switch to another provider, essentially locking their phones to a single service provider. By circumventing these protection measures consumers and organizations like the Wireless Alliance, which offers refurbished mobile phones to developing nations, are able to instruct their phones to connect to rival networks. Granick argued that such use of the phones' firmware implicates none of the copyright holder's exclusive rights and is therefore non-infringing. She contended that the DMCA threatens this non-infringing use because those who unlock phones face potential liability under § 1201(a)(1). A recent lawsuit filed by mobile phone provider Tracfone against a competitor that unlocked its phone provides evidence of this threat.

Steven Metalitz, on behalf of the Joint Reply Commenters, a group of copyright trade organizations including the RIAA, MPAA, and BSA, expressed doubt that the Copyright Office was the appropriate venue for resolving Granick's concerns. Although they admitted the environmental and anti-competitive effects of mobile phone locking, the Joint Reply Commenters suggested that the FCC could more effectively regulate the practices of mobile service providers. They also questioned the substantiality of the threat the DMCA poses to mobile phone locking, contending that the DMCA was a "bit player" in the Tracfone litigation and that the injunction issued in the case did not rely explicitly on Tracfone's DMCA claim. Nonetheless, the Joint Reply Commetners conceded that DRM schemes for securing audio and video content on mobile phones can be and often are separated from the firmware protection measures that lock a phone to a particular network. Overall, the opposition to Granick's proposed exemption from the copyright trade associations represented by Mr. Metalitz was minimal.

The second proposal addressed at yesterday's hearing was filed by the Internet Archive and sought an exemption for computer software and video games distributed in obsolete formats or that require obsolete hardware or operating systems as a condition of access. In the 2003 rulemaking, the Internet Archive convinced the Copyright Office to exempt "computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access." Brewster Kahle explained why the existing exemption not only remains necessary but requires expansion. In its effort preserve previous generations of software and games, the Internet Archive faces the obsolescence of operating systems and hardware. As Amigas and Apple 68K machines become increasingly unavailable, for example, the preservation of the software that ran on those systems has become both more necessary and more difficult. In these instances, circumvention of protection measures is essential to the preservation of these works.

Steven Metalitz and the Joint Reply Commenters expressed concern over the potential impact of this exemption on the market for rereleased classic video games, pointing to Nintendo's plan to make its 8-bit catalog available on its upcoming Revolution system and Time Warner's licensing of numerous classic games for its Gamespot service. The Joint Reply Commenters suggested limiting the proposed exemption to games and software not available in a non-obsolete format and offered a definition of "obsolete" that is far more narrow than the term's current definition under § 108 of the Copyright Act. Section 108 classifies a format as obsolete if hardware necessary to access it is not reasonably available in the commercial market, but the Joint Reply Commenters argued that given the increased access to second-hand goods enabled by sites like eBay, this understanding of "obsolete" is too broad.

The rulemaking hearings will continue next week in Washington, D.C. with discussions of proposed exemptions for compilations of Internet locations blocked by filtering software, ebooks that prevent the use of read-aloud functions, CDs protected by technological measures that create root-kit-like security vulnerabilities, computer programs protected by obsolete dongles, audiovisual works protected by technological measures that prevent their educational use, and audiovisual works in the public domain.

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